Darla Jones v. D. Johnson ( 2021 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 7 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
DARLA RAY JONES, No. 20-55407
Petitioner-Appellant, D.C. No.
2:15-cv-01376-MWF-SHK
v.
D. K. JOHNSON, Warden, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted July 7, 2021
Pasadena, California
Before: D.M. FISHER,** WATFORD, and BUMATAY, Circuit Judges.
In 2013, Darla Jones was convicted in California state court of assault with a
firearm and making criminal threats. Later it came to light that, during Jones’ trial,
her defense attorney had been under prosecution by the Los Angeles County
District Attorney—the same office that prosecuted Jones. The District Court
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable D. Michael Fisher, United States Circuit Judge for the
U.S. Court of Appeals for the Third Circuit, sitting by designation.
denied Jones’ petition for a writ of habeas corpus and granted her a certificate of
appealability on one claim: that Jones’ lawyer was operating under a conflict of
interest by representing her while he was being prosecuted by the same DA’s
office. As to this claim, we affirm. We decline to expand the certificate of
appealability to include two additional claims Jones raises.
1. In her state-court and District Court habeas petitions, and before this
Court, Jones has argued that her lawyer’s conflict of interest violated her Sixth
Amendment right to the effective assistance of counsel. She has contended that, to
curry favor with the prosecutor, her lawyer pulled his punches when examining the
prosecutor’s investigator, who was called as a defense witness.
Usually, a defendant demonstrates ineffective assistance by showing that
“counsel’s performance was deficient” and that “the deficient performance
prejudiced the defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984).
However, “a defendant who shows that a conflict of interest actually affected the
adequacy of [her] representation need not demonstrate prejudice” because “[t]he
conflict itself demonstrate[s] a denial of the right to have the effective assistance of
counsel.” Cuyler v. Sullivan, 446 U.S. 335, 349 (1980) (internal quotation marks
omitted). Such a defendant need only show that the conflict “adversely affected
[her] lawyer’s performance.” Id. at 348; see also Strickland, 466 U.S. at 692(leaving intact Sullivan’s presumption-of-prejudice standard).
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The California Court of Appeal stated that Jones must show that
“(1) counsel labored under an actual conflict of interest that adversely affected
counsel’s performance, and (2) absent counsel’s deficiencies arising from the
conflict, it is reasonably probable the result of the proceeding would have been
different.” In re Jones, No. B262848, 2016 WL 1105020, at *2 (Cal. Ct. App. Mar.
22, 2016) (citation omitted). This standard does not correctly articulate either
Sullivan or Strickland—rather, it is an amalgamation of both. The Court of Appeal
held that Jones did not carry her burden because she did not show prejudice.
Before us, Jones argues that: we should review her claim de novo because
the Court of Appeal applied the wrong standard; the more lenient Sullivan standard
applies; and her counsel’s conflict of interest adversely affected his performance.
See Mickens v. Taylor, 535 U.S. 162, 176 (2002) (explaining that Sullivan is more
lenient because it is an “exception[] from the ordinary requirements of Strickland”
that applies “where Strickland . . . is evidently inadequate to assure vindication of
the defendant’s Sixth Amendment right to counsel”). We assume, without
deciding, that Jones is correct about our standard of review (de novo) and the
applicable substantive standard (Sullivan). Nevertheless, the District Court did not
err in denying Jones’ claim because the conflict of interest did not adversely affect
her counsel’s performance. See Rowland v. Chappell, 876 F.3d 1174, 1193 (9th
Cir. 2017) (not deciding between Sullivan and Strickland because, even under
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Sullivan, counsel’s performance was not adversely affected).
Jones argues that her counsel soft-pedaled his questions to the investigator
and lost the opportunity to argue that the victims changed their story about the date
of the assault only after the prosecutor approached them. That argument, she says,
would have caused the jurors to view the victims’ entire testimony with suspicion.
The problem with Jones’ contention is that counsel made precisely the argument
she describes. He vigorously advocated to call the investigator as a defense witness
(and, during the same sidebar, sharply criticized the prosecutor). When the
prosecutor argued that defense counsel’s ability to argue from the evidence should
be limited, counsel pushed back and got a favorable ruling: that he would be
permitted to point out the discrepancy in the witnesses’ testimony.
In his closing argument, defense counsel attacked the witnesses’ credibility,
saying that “their story” was “absolutely ludicrous.” He argued that the victims
“only change the date after they’re questioned about it and . . . even then, it takes
them a long time.” He told the jury that “there is just no way, just on the date
alone, you could find this case was proven beyond a reasonable doubt.” On this
basis, he concluded, “this [crime] just didn’t happen.” Given that counsel
strenuously advanced the very argument that Jones now says he sacrificed, his
performance was not adversely affected by the conflict of interest.
2. Jones argues that the certificate of appealability should be expanded to
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include the issue of whether the prosecutor violated her due process rights by
failing to correct evidence. See Napue v. Illinois, 360 U.S. 264, 269 (1959) (state
violates due process by obtaining a conviction using false evidence). A certificate
of appealability is granted if the petitioner makes “a substantial showing of the
denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which means that “jurists
of reason could disagree with the district court’s resolution of his [case] or . . .
conclude the issues presented . . . deserve encouragement to proceed further,”
Mitchell v. United States, 971 F.3d 1081, 1083 (9th Cir. 2020) (per curiam)
(alteration in original) (citation omitted).
Jones argues that Darryl Israel testified falsely that he contacted the
prosecutor about the date being incorrect before the prosecutor contacted him. To
begin with, this line of questioning was confusing due to defense counsel’s
numerous compound questions. And, as described above, the jury later heard the
investigator’s testimony that the prosecutor asked Israel about the date first.
Israel’s testimony was more confused or confusing than false. We agree with the
California Court of Appeal that “[a]t worst, the purported discrepancy in Israel’s
testimony reflected negatively upon his credibility.” People v. Jones, No.
B251324, 2014 WL 6657247, at *5 (Cal. Ct. App. Nov. 24, 2014).
Jones next argues that Terrence Hite testified misleadingly that he (Hite) had
been trying to convince Israel “the whole time” that the date was incorrect. Jones
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does not explain what was misleading about this statement. Defense counsel did
not ask—so Hite did not explain—what time period he meant by “the whole time.”
Moreover, defense counsel’s question (“Are you sure [the prosecutor] didn’t call
you and tell you that the date was wrong?”) assumed the prosecutor told Hite the
date was wrong, which the prosecutor denied doing.
“[N]o reasonable jurist would agree,” Mitchell, 971 F.3d at 1084 n.4, that the
prosecutor had a responsibility “to correct the record to reflect the true facts,”
Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005). We do not grant a certificate of
appealability on this issue.
3. Jones’ second uncertified issue is that, aside from any conflict of interest,
her counsel was ineffective. Here, rather than the Sullivan standard discussed
above, the more demanding Strickland standard applies: Jones must show both
deficient performance and prejudice. Strickland, 466 U.S. at 687. We have
explained that counsel’s questioning of the investigator did not show an “adverse
effect” on his performance under the more lenient Sullivan standard—so
undoubtedly, there was no prejudice under the Strickland standard. Defense
counsel was able to argue to the jury that the witnesses, after talking to the
prosecutor in December 2012, changed their position regarding when the assault
took place.
“[N]o reasonable jurist would agree,” Mitchell, 971 F.3d at 1084 n.4, that
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counsel was ineffective. We do not grant a certificate of appealability on this issue.
AFFIRMED.
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